Thompson v. McKune , 516 F. App'x 711 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
June 20, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MARC J. THOMPSON,
Petitioner-Appellant,
v. No. 13-3049
(D.C. No. 5:12-CV-03016-SAC)
DAVID McKUNE; ATTORNEY (D. Kan.)
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, McKAY and MURPHY, Circuit Judges.
Petitioner Marc Thompson, a state parolee1 proceeding pro se, seeks a certificate
of appealability to appeal the district court’s denial of his § 2254 habeas petition.
Petitioner was convicted by a jury of aggravated indecent liberties for conduct occurring
in July 2002 with his then four-year-old daughter. Petitioner appealed his conviction, and
the Kansas Court of Appeals affirmed. Petitioner then filed a motion pursuant to K.S.A.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
After filing his federal habeas petition, Petitioner was released from prison on
parole. His status as a parolee is sufficient to render him “in custody” for purposes of 28
U.S.C. § 2254. See United States v. Condit, 621 F.2d 1096, 1098 (10th Cir. 1980); Jones
v. Cunningham, 371 U.S. 236, 243 (1963).
§ 60-1507 for post-conviction relief on November 2, 2006, the day before the one-year
limitations period ran. Nearly six months later, Petitioner sought to amend his original
motion to include, among other things, claims of prosecutorial misconduct and ineffective
assistance of appellate counsel. The trial court dismissed these portions of Petitioner’s
amended motion as untimely. Following an evidentiary hearing on Petitioner’s remaining
claims, the trial court denied relief. Both the Kansas Court of Appeals and the Kansas
Supreme Court affirmed the trial court’s denial of post-conviction relief and dismissal of
Petitioner’s untimely claims. Petitioner then filed the instant § 2254 habeas petition.
In his federal habeas petition, Petitioner raised five grounds for relief: (1) he
received ineffective assistance of trial counsel based on several alleged deficiencies in his
trial counsel’s performance;2 (2) the jury was biased and improperly influenced by the
trial judge; (3) he received ineffective assistance of appellate counsel; (4) the State
engaged in prosecutorial misconduct; and (5) cumulative error rendered his trial
fundamentally unfair. The district court concluded that the state courts had not
unreasonably applied Supreme Court precedent in rejecting Petitioner’s claim that he
received ineffective assistance of trial counsel, and that, in the absence of any error, the
state courts had not unreasonably rejected Petitioner’s cumulative error claim, see Hooks
v. Workman, 689 F.3d 1148, 1195 (10th Cir. 2012) (“[W]e undertake a cumulative-error
2
Petitioner cited several bases for his ineffective assistance of trial counsel claim:
(1) the failure to provide a proper expert witness, (2) the failure to challenge videotaped
testimony of his daughter, (3) the failure to call his daughter to the stand, (4) countless
trial errors, and (5) the failure to provide a full voir dire. In their answer in the district
court, Respondents argued only the first three bases were preserved for review.
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analysis only if there are at least two errors.”). It accordingly denied relief on Petitioner’s
first and fifth claims under 28 U.S.C. § 2254(d)(1). The district court then concluded that
Petitioner had failed to exhaust his claim that he received ineffective assistance of trial
counsel based on “countless trial errors” and the failure “to provide a full vior [sic] dire”
(R. Vol. I 10 at (capitalization standardized)) as well as his claim of jury bias and
improper influence. It accordingly denied relief on these claims under 28 U.S.C. §
2254(b)(1)(A). Finally, the district court concluded that Petitioner’s claims of ineffective
assistance of appellate counsel and prosecutorial misconduct were procedurally barred in
light of the state courts’ determination that he failed to present them in a timely manner.
After thoroughly reviewing the record and Petitioner’s filings on appeal, we
conclude that reasonable jurists would not debate the district court’s denial of habeas
relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, for substantially
the same reasons given by the district court and the state courts, we DENY Petitioner’s
request for a certificate of appealability and DISMISS the appeal. Petitioner’s motion for
leave to proceed in forma pauperis is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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